ADR News Archive for 1997-1998
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The Willamette Law School Dispute Resolution Information Service.
Western Justice Center Team Aids South
Africa
In Building Policy Dispute Resolution
Capability
Press Release
Pasadena, CA (August 17, 1998) -- A team of mediation experts from Western Justice Center is helping South Africa create a public policy dispute resolution capability based on the Statewide Office of Mediation (SOM) model that has been widely adopted in the United States.
Mediation Summary Not Admissible As Evidence
Kitchen and Kitchen Farms, Inc., v. Kitchen (Mich. App. 7/31/98)
After brothers William and Robert Kitchen dissolved their partnership, plaintiff William Kitchen brought an action for prescriptive easement, permanent license, and estoppel for use of irrigation equipment which ran over Robert Kitchen's land. After a failed mediation, Robert filed a motion for summary disposition and submitted William's mediation summary as evidence of the frivolousness of plaintiff's claim. The court rejected Robert's argument that the summary was admissible because it did not pertain to the merits of William's original claim and upheld the policy of supporting honest and reprisal free mediation encapsulated in Michigan statute 2.403(j). [Full Decision On Westlaw: 1998 WL 436090]
Recent Cases Related to Mediation
Federal: SDWVa: Donna Willis v. Darrell V. McGraw, Jr., 1998 WL 70370 (SDWVa 1998) A purported settlement reached in mediation is not enforceable unless the agreement is reduced to writing and signed by all the parties. A bright line test is appropriate to avoid undue interference in the mediation process.
Alabama: Morrison Restaurants v. Homestead Village of Fairhope, 1998 WL 96556 (AL 1998) Defending a lawsuit for payment under the contract through a failed motion for summary judgement is an abandonment of the right to mediate and, failing success, arbitrate provided under the contract. Alaska: Gaston v. Gaston, 1998 WL 66137 (1998) An agreement to mediate or seek court modification of a visitation agreement does not lapse because the parties have agreed to an interim change without use of a mediator. California: Weddington Productions v Flick 60 Cal App 4th 793, 71 Cal Rptr 2d 265 (1998) holds that a memorandum of partial agreement resulting from a mediation cannot be converted by the mediator into an enforceable agreement absent the consent of both parties. This apparently obvious view was violated when the mediator (described in the opinion as a private judge) attempted to convert the process into a binding arbitral one in the absence of agreement between the parties for this to take place. Indiana: Koval v. Simon Telelect, Inc., et al., 1998 WL 146193 (1998) An attorney , while not having by virtue of retention in the matter the authority to settle or compromise a claim, does have the power to bind the client to a settlement in an ADR procedure under court rules as the retainer does grant counsel the authority to bind the client to the results of a court procedure. Indiana: Scott v Randle, 1998 WL 195914 (1998) An attorney's agreement to a settlement reached in mediation may bind the parties he represents if he was given apparent authority to bind them and that apparent authority was communicated by the conduct of the underlying parties in interest throughout the mediation. Michigan: Great Lakes Gas Transmission Limited Partnership v Markel, 226 Mich. App. 127 (1997) demonstrates just how wrong a court can be in misusing terms. According to the court the case was referred to a mediation panel which made an award to the property owner. This case involves an attempt to impose sanctions for refusing the mediation award. The court awarded sanctions. Michigan: Hensley v. Siegrist, 1998 WL 126899 (1998) The Dram Shop Act prohibition against a settlement between the plaintiff and the immediate tortfeasor prior to a determination of liability on the part of the dram shop, which did not agree to the settlement, does not bar a dismissal of the case involving the immediate tortfeasor in a mediated settlement rejected by the dram shop. Michigan: Ronald E. and Sherry M. Sheffer v. North American Insurance, 227 Mich. App. 723 (1998) Entry of judgement on an agreed settlement reached in mediation is not a verdict for purposes of a claim for sanctions based on the prior rejection of a larger offer. Michigan: Mcauley v. General Motors Corporation, 1998 WL 282971 (1998) where mediation was held under a rule, MCR 2.403, which provides that a party who rejects a mediation proposal and receives a less favorable decision in court must pay the other parties attorney fees incurred after the mediation. Such an award was held to be superseded where a judicial award including attorney fees for the same matter was subsequently obtained and the award would constitute a double recovery. Minnesota: Ali Haghighi d/b/a International Radio Network v. Russian-American Broadcasting Co., 1998 WL 223778 (1998) says that a document resulting from a mediation which fails to state that it is binding (as required by both the Mediation Agreement between the parties and the Minnesota Civil Mediation Act) is not enforceable as a settlement agreement. Wisconsin: Valiant and Ida Tiske v. Wal-Mart Stores, 1998 WL 73100 (WI App 1998) A company which when invited to participate in mediation only made a claim for its statutory share, which all parties agreed to pay, cannot seek an evidentiary hearing on the distribution of the settlement proceeds.New Mediation Legislation
Federal: PL 105-106 creates the United States Institute for Environmental Conflict Resolution under the auspices of the Morris K. Udall Foundation.
Federal: The ADR Bill, H.R. 3528, "The Alternative Dispute Resolution Act of 1998", after amendment by the Judicial Conference of the United States, was passed by the House April 22, 1998. Iowa: Iowa has a new statute providing for mediator confidentiality, privilege and immunity. House File 2478, was signed into law April 6, 1998. Developed by the Attorney General's Task Force on Mediation, it defines "mediation" as "a process in which an impartial person facilitates the resolution of a dispute by promoting voluntary agreement of the parties to the dispute." and "mediator" as an impartial person who facilitates the resolution of a dispute between parties in the mediation process." The text of the bill is online at http://www2.legis.state.ia.us/cgi-bin/Legislation/Bill.pl. New Jersey: A new law requires construction disputes under the Public Contracts Law to be submitted to mediation and failing agreement to binding arbitration. A clause to that effect will be, by law, incorporated into each such contract. The provision does not apply to bid disputes Washington: A new statute requires mediation to be initiated prior to appealing a final, conditional, or special use permit determination as to land use. Wisconsin: Special Education matters may be mediated on the request of the parent or joint request of the parent and the school. The school must provide the parent with information about mediation and its availability.New Organizational Web Sites
The National Center for State Courts has an ADR Clearinghouse on its site at: http://www.ncsc.dni.us/is/clrhouse.htm.
New England SPIDR can be found at: http://www.igc.org/nespidr A new British dispute resolution organization website can be found at: http://members.aol.com/itacor City University of New York Dispute Resolution Consortium is online at: http://web.jjay.cuny.edu/~dispute The National Mediation Board works on labor relations in the rail and air transport industries. Their web site is at: http://www.nmb.gov Conflict Resolution Center International has moved on the web to: http://www.conflictres.org The Network: Interaction for Conflict Resolution, the leading Canadian organization for mediation and conflict resolution has moved its website to http://www.nicr.ca The Canadian Institute for Dispute Resolution offers both French and English language sites at http://www.resolution.caOther New Useful ADR Related Web Sites For searching English law http://www.online-law.co.uk For searching for French Language sites: http://www.pagesweb.com CounselQuest, a legal search site, is now at: http://www.CounselQuest.com. A recent list of The Alternative Newsletter Editor's recommended ADR web sites is online at: http://www.mediate.com/articles/boskey.cfm Kluwer, the Dutch legal publishers, offer a site via their homepage (http://www.kluwerlaw.com). They are currently developing a comprehensive database of arbitration material, including the full texts of arbitration treaties, legislation, rules, case law and commentaries. It will be supplemented by an extensive bibliography. Full launch is scheduled for this Autumn. Acclivus, a performance consulting organization that trains and consults in negotiation and relationship skills: http://www.acclivus.com/welcome.html
Other New Network and Web Information
CPR Institute for Dispute Resolution, 366 Madison Ave., New York, NY 10017-3122. 212-949-6490 has made its ADR Clauses , Mediation Procedure, Minitrial Procedure, and Arbitration Rules available in electronic form both on diskette and available for download- ing at http://www.cpradr.org (click on practice tools).
For those who are at least modestly francophone, Les Pages Web is a very good search engine for French language materials: http://www.pagesweb.com. A new listserv type colloquium has been established to discuss cyberjustice, continuing discussions on the subject begun in June at the Montreal colloquium. Subscription information is available at http://www.cybertribunal.org/english/ html/cyberjusticeng.htm. The discussions are in french and in english. Geoffrey Hartwell's a paper on technical experts' roles in dispute resolution is at: http://www.hartwell.demon.co.uk/Paris.htm Meyer, Judith P., ADR Online: The Pros and Cons of Mediation, http://www.adr.org/drj/pro_con_of_m ediation.html Press, Sharon and Rathet, Brooks, Ethics Within The Mediation Process, http://www.adr.org/currents/ethics_in _mediation_process.htmlGovernment Ordered To Be Represented In Mediation
In Re: United States (5th Cir. 7/29/98)
In an estate tax action, the district court ordered that the United States
be represented at mediation by a person with full settlement authority.
The United States petitioned for a writ of mandamus seeking to vacate the
order. The Court of Appeals affirmed and held that the order was not an
abuse of discretion. The court recommended that the district court
consider alternatively ordering the government to have the person or
persons identified as holding full settlement authority to consider
settlement in advance of mediation and be fully prepared and available by
telephone to discuss settlement at the time of mediation.
[Full Decision On Westlaw: 1998 WL 426216]
No Evidentiary Privilege Existed Against Disclosure of Mediation
In Re: Grand Jury Subpoena Dated December 17, 1996 (5th Cir. 7/27/98)
Individuals who had participated in a mediation session under an agricultural loan mediation program administered by the state of Texas pursuant to the federal Agricultural Credit Act sought to quash a grand jury subpoena which had been served on the program's custodian of records and which demanded, inter alia, information relating to the session. The district court quashed the subpoena, and the federal government appealed.
The Court of Appeals held that:
- the individuals had standing to challenge the subpoena;
- the issue was not moot even though the information had been turned over to the grand jury; and
- no evidentiary privilege existed against disclosure of the information to the grand jury
Mediation Testimony Permitted Despite Statute To The Contrary
Kenney v. Emge (Mo. App. E.D. 6/30/98)
Emge, the President of a small corporation, fired Kenney, the Secretary
and only other shareholder, after disputes arose over Kenney's poor
performance in sales and marketing. The parties submitted to an
unsuccessful mediation and proceeded to court. Although Section 435.014
RSMo clearly states that a mediation proceeding is to be confidential,
Kenney did not object to testimony given by Emge or the judges suggestion
that the mediator testify until a week later when the mediator was sworn.
The objection was overruled and the mediator gave limited testimony and
the court upheld Kenney's termination. The Court of Appeals concluded
that such testimony was indeed in violation of Section 435.014 but found
that Kenney was not prejudiced by the testimony, relying in part on
Kenney's lack of objection to testimony regarding the mediation and
affirmed the trial court's decision.
[Full Decision 1998 WL 344091]
*This opinion has not been released for publication and may be modified,
superseded or withdrawn.
PRESS RELEASE
June 2, 1998
The American News Service (ANS) is the largest non-profit service in the world offering solution oriented news and information. The American News Service seeks to widen the lens of the nation's media by helping journalists balance their coverage of crime, coups and corruption with in-depth articles on solution-oriented action.
For the past three years ANS has been covering America's search for solutions. From teen courts to neighborhood gardens, from Shalom Zones to affordable housing plans, these solutions are happening in every community, on every school board, at every town meeting.
Our goal is to chronicle the process; and it's just that - a process. In the search for solutions we sometimes find failure; we sometimes find disappointment, but we also find answers. We also find hope.
At ANS Online, media professionals and readers alike will gain access to the latest coverage of America's search for solutions.
* Feature Stories
* Solutions in Brief
* In-depth reports
* Contacts and Leads for localizing coverage
* Solutions Graphics
* Access to the ANS Online searchable Story Bank
* Access to the ANS Editorial Hotline
* ANS Solutions News Alerts and much more.......
We invite American journalists and readers alike, to try a new road. We invite you to go beyond the "If it bleeds, it leads," approach to headlines. We invite you to take a closer look at who the real newsmakers are - average citizens involved in extraordinary change.
Problems Of Conflict Management In Virtual Communities
by Anna DuVal Smith
This article explores source of conflict and techniques of social control in an open-access, text-based virtual community. It argues that such social systems have the same kinds of opportunities and problems brought by diversity that real communities do, but that unique features of cyberspace make effective conflict management both more important and more difficult. www.en.com/users/macduff/papers/cinc/cinc.html
Prosecutor Tried To Mediate Dispute Involving Criminal Offense
State v. Tolias (Wash. 5/07/98)
Tolias was convicted of second degree assault. During the trial, the prosecutor's office participated in what Tolias characterized as "mediation efforts." Tolias made an unsuccessful pretrial motion to disqualify the entire prosecutor's office because the deputy prosecutor was named as a witness. The Court of Appeals reversed the conviction explaining that the prosecutor tried to "mediate" and that should have disqualified the whole prosecutor's office from prosecuting. The Supreme Court of Washington reversed the appellate court's decision on the ground that the issue was not properly raised at trial. [Full Decision On Westlaw: 1998 WL 224040]
New York Based CPR Institute for Dispute Resolution announced its 15th annual awards for advancing alternative dispute resolution. The Outstanding Practical Achievement Award went to James B. Boskey, law professor at Seton Hall University Law School for creating The Alternative Newsletter.
Custody Agreement Bound Parties To Mediation
Gaston v. Gaston (Alaska 2/20/98)
Samuel and his former wife Susan signed a custody agreement that allowed them to change the physical custody arrangement after one year. The agreement contained a clause that allowed mediation or court modification if they disagreed on changes to the agreement. After nine months, the agreement was slightly modified. One year later, Susan decided the new arrangement was not in the children's best interest and she wanted to go back to the original agreement. Samuel filed a motion requesting mediation or court modification because he wanted to keep the new schedule. The superior court denied his request ruling in part that the agreement's mediation provision had lapsed. The Supreme Court reversed holding that the former wife was estopped by her agreement to the modified visitation schedule from arguing that the mediation provision of the separation agreement had lapsed. The court remanded the case to the superior court for an order requiring the parties to mediate the dispute. [Full Decision On Westlaw: 1998 WL 66137]
THE WHITE HOUSE
Office of the Press Secretary
(Palo Alto, California)
For Immediate Release May 1, 1998
MEMORANDUM FOR HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
SUBJECT: Designation of Interagency Committees to Facilitate and Encourage Agency Use of Alternate Means of Dispute Resolution and Negotiated Rulemaking
As part of an effort to make the Federal Government operate in a more efficient and effective manner, and to encourage, where possible, consensual resolution of disputes and issues in controversy involving the United States, including the prevention and avoidance of disputes, I have determined that each Federal agency must take steps to: (1) promote greater use of mediation, arbitration, early neutral evaluation, agency ombuds, and other alternative dispute resolution techniques, and (2) promote greater use of negotiated rulemaking.
By the authority vested in me as President by the Constitution and laws of the United States including sections 569(a) and 573(c) of title 5, United States Code, as amended by the Administrative Dispute Resolution Act of 1996 (Public Law 104-320), I hereby direct as follows:
An Alternative Dispute Resolution Working Group, comprised of the Cabinet Departments and, as determined by the Attorney General, such other agencies with a significant interest in dispute resolution, shall be convened and is designated under 5 U.S.C. 573(c) as the interagency committee to facilitate and encourage agency use of alternative means of dispute resolution. The Working Group shall consist of representatives of the heads of all participating agencies, and may meet as a whole or in subgroups of agencies with an interest in particular issues or subject areas, such as disputes involving personnel, procurement, and claims. The Working Group shall be convened by the Attorney General, who may designate a representative to convene and facilitate meetings of the subgroups. The Working Group shall facilitate, encourage, and provide coordination for agencies in such areas as: (1) development of programs that employ alternative means of dispute resolution, (2) training of agency personnel to recognize when and how to use alternative means of dispute resolution, (3) development of procedures that permit agencies to obtain the services of neutrals on an expedited basis, and (4) record keeping to ascertain the benefits of alternative means of dispute resolution. The Working Group shall also periodically advise the President, through the Director of the Office of Management and Budget, on its activities.
The Regulatory Working Group established under section 4(d) of Executive Order 12866 is designated under 5 U.S.C. 569(a) as the interagency committee to facilitate and encourage agency use of negotiated rulemaking.
This directive is for the internal management of the executive branch
and does not create any right or benefit, substantive or procedural,
enforceable by a party against the United States, its agencies or
instrumentalities, its officers or employees, or any other person.
WILLIAM J. CLINTON
ATTORNEY GENERAL USES LAW DAY TO PROMOTE ADR
In celebration of Law Day, Attorney General Janet Reno has kicked off a comprehensive campaign to promote the use of ADR and conflict resolution. The Attorney General has written letters to all of the nation's governors and state attorneys general, encouraging them to use the annual Law Day celebrations in their states as an opportunity to speak out about dispute resolution programs in courts, schools and communities. She said:
I believe we have an obligation to those we represent and to society as a whole to serve as peacemakers and problem solvers. It is our job to help resolve disputes in ways that promote civility, preserve relationships, and minimize the burdens on our court systems. Many dispute resolution programs serve these purposes admirably.
In addition, Reno also asked all ninety three United States Attorneys, as well as her senior Department managers in Washington, to participate in an appropriate Law Day observation. She suggested that they identify and promote successful dispute resolution activities in their areas.
Finally, the Attorney General has made a ten-minute video tape message suitable for presentation to bar groups on the benefits of using dispute resolution in a variety of settings. Bar associations can obtain a copy of this tape from the Senior Counsel for ADR at the Department of Justice by calling 202-616 9473.
Attorney Has Inherent Power To Bind Client In ADR Proceeding
Koval v Simon Telelect, Inc. (Ind. 03/31/98)
Under the Indiana ADR rules, an attorney for a party can bind his or her client in an ADR proceeding using an analogous rule for "in court" proceedings. "[I]n the absence of a communication of lack of authority by the attorney, as a matter of law, an attorney has the inherent power to settle a claim when the attorney attends a settlement procedure governed by the ADR rules." [Full Decision On Westlaw: 1998 WL 146193]
Critical Path to Mediating High-Tech Disputes
Practicing Law Institute - Patents, Copyrights, Trademarks, and Literary Property Course Handbook Series PLI Order No. G4-4042 - February 1998
Mediation's efficiency and flexibility makes it the ideal choice for resolving disputes in an industry noted for rapid change. Unfortunately mediators knowledgeable in high-tech issues are in short supply. Attorneys and clients view the lack of in-depth industry related knowledge as the greatest bar to entering into mediation. [Full Article On Westlaw: 507 PLI/Pat 1081]
Summary Disposition Of Mediation Award Upheld
Hensley v. Siegrist (Mich. Ct. App. 3/20/98)
The Hensley's were injured in a car accident by Siegrist, a minor, who was allegedly furnished alcohol by Churchill's. The Hensley's and Siegrist accepted a mediated decision which found against both Siegrist and Churchill's. Churchill's however, refused to accept the mediated decision and claimed that the Hensley's violated the "name and retain" provision of the Dram Shop Act (DSA). The DSA requires that plaintiffs can not discharge their claim against Siegrist until a decision is reached concerning the involvement of Churchill's in order to avoid fraud and collusion. The Court of Appeals affirmed the trial court in dismissing the action by finding that the Hensley's could have made a conditioned acceptance of the mediated decision and were therefore not coerced by a threat of sanctions imposed by statute if the mediated decision was not accepted. [Full Decision: 1998 WL 126899]
Director of Federal Mediation and Conciliation Service Resigns
Statement of John Calhoun Wells
Unsigned And Ambiguous Agreement Is Not Binding
Kelly v. Kelly (Ohio App 03/02/98) (Unpublished)
In a divorce proceeding the parties entered into a private
mediation to divide martial assets. The parties never signed the
final agreement. The trial court found that the terms of the
agreement were ambiguous and disregarded the mediation agreement.
The Court of Appeals held that the trial court was not bound by the
terms of the agreement and correctly divided the marital assets and
liabilities, including a large credit card debt.
[Full Decision: 1998 WL 87494]
Confidentiality Statute Applies To Delinquency Proceedings
Rinaker v. Superior Court of San Joaquin County (Cal App 03/16/98)
California Evidence Code Section 1119 provides that no evidence of
anything said during mediation is admissible or subject to
discovery. The confidentiality provisions of Section 1119 apply to
juvenile delinquency proceedings. The public policy served by
these provisions must yield when necessary to ensure the minor's
constitutional right to effective cross examination and impeachment
of an adverse witness.
[Full Decision: 1998 WL 117988]
WIPO Arbitration and Mediation Center
The Center offers its services to all interested parties.
Initially the Center's online system is made available for disputes
involving Internet domain names, but will soon handle other types
of intellectual property issues. A novel feature of the system
will allow parties and neutrals to communicate simultaneously
(using electronic "chat" as well as, when available, audio and
televideo facilities), thereby reducing the need for in-person
meetings and hearings.
Details: http://www.wipo.int
Hamline University and
Mediation Center For Dispute Resolution
Affiliation
Hamline University and Mediation Center for Dispute Resolution have
announced a formal university-wide affiliation. Under the
leadership of Nancy Welsh and Professor Bobbi McAdoo, the Center
and Institute have trained and assisted lawyers, judges,
legislators, public officials, businesses and individuals from the
Midwest and beyond.
Details: (612) 523-2941
Commissioners On Uniform State Laws
To Collaborate On Mediation Law
The National Conference of Commissioners on Uniform State Laws and the American Bar Association Section on Dispute Resolution announced recently that they will appoint interlocking committees to draft a uniform or model mediation law for states to consider. Both groups will begin work in the next few months on uniform provisions on confidentiality in mediation, followed by work on other provisions over the next three to four years.
Professor Nancy Rogers from Ohio State with the assistance of Richard C. Reuben of the Stanford Center on Conflict and Negotiation will coordinate the academic assistance. Faculty from several other law schools will participate in a comprehensive review of the more than 2,000 state and federal mediation statutes and court rules. The project will solicit suggestions and comments throughout the process from an advisory committee that is broadly representative of the dispute resolution field. In about a year, the project will begin circulating drafts and soliciting reactions to its work from any interested persons or groups.
Details: richardr@leland.stanford.edu
Commission on Healthcare Dispute Resolution
Interim Report
The Commission on Healthcare Dispute Resolution established by the American Arbitration Association, American Bar Association, and American Medical Association, formed in Fall 1997, issued an Interim Progress Report 01/20/98, and expects a final report in summer 1998. The Commission will make recommendations on "resolving disputes over access to health care treatment, and coverage, in the private health plan/managed-care environment."
Objectives: (1) Identify substantive areas suitable for ADR; (2) Establish due process criteria; (3) Develop model ADR procedures.
Areas of study: Access to specific health care providers, needed treatment, specific health care facilities; medical necessity of treatment; experimental treatment; reasonableness of cost; continuity of care; disclosure of information to consumers; development of drug formularies; out-of-area coverage; provider communication with patients; utilization management.
ADR methods: Ombuds, fact-finding, mediation, arbitration.
Court Can Compel Discovery of Mediation Settlement
Datapoint Corporation v. Picturetel Corporation (ND Tex 1/14/98)
Plaintiff Datapoint and intervenor-plaintiffs Frassanito and Monroe entered into a mediation settlement agreement, which was subject to the terms of a final judgment (which precluded disclosure unless ordered by the court). Defendant Picturetel moved to compel production of that settlement agreement, as well as testimony related to it. Plaintiffs contended that disclosure of the information was prohibited by Southern District of Texas local rule 20(I) (because the settlement resulted from mediation), and by Fed.R.Evid. 408 (which would preclude the agreement from being admitted in evidence). The court held that the information sought is not privileged, and the local rule does not render otherwise non-privileged settlement communications privileged because the court itself had the authority (via the final judgment) to order disclosure. [1998 WL 25536]
Conditional Privilege Between Social Worker and Mediator
John v. Family Service of Waukesha (Wis App 1/28/98)
In a visitation dispute, one of the parties got the help of a social worker to notify the mediator of possible child abuse at the hands of the opposing party. The court held that the letter which contained the accusations was not defamation and fell under the defense of common interest conditional privilege. In so holding, the court found that the social worker held a common interest with the mediator in the child's welfare. [1998 WL 27312]
Oregon Attorney General Adopts Mediation Confidentiality Rules
These rules further implement recently adopted Oregon SB 160 (See related info) which clarifies numerous confidentiality issues in Oregon.
Mediation Clause Prompts Court to Stay its Proceedings
Cecala v. Moore (ND Ill 11/17/97)
Real estate buyers sued sellers, alleging false statements in a
disclosure report. Sellers moved to stay the proceeding pursuant
to a mediation provision in the property sale contract. The court
granted the motion, concluding it had authority under the Illinois
Uniform Arbitration Act.
[Full Decision Not Available Online: 1997 WL 718783]
Courtesy:The Willamette Law School Dispute Resolution Information Service
The National Conference on Peacemaking and Conflict Resolution (NCPCR) is exploring the possibility of relocating. NCPCR is currently housed at the Institute for Conflict Analysis and Resolution (ICAR) at George Mason University, but both ICAR and NCPCR are growing, while ICAR's space is not. We hope to find new space with a program whose mission and vision are also compatible with those of NCPCR, a program that values innovation and diversity and that will benefit from the flow of new ideas provided by the Conference.
NCPCR is a leading institution in the field and the world's largest conference on peacemaking and conflict resolution. The conference, held every two years in a different location, attracts approximately 1500 people from the US and more than 25 other countries. NCPCR is a non-profit corporation with our own staff and limited assets/resources. We are seeking low- or no-cost office space and access to basic office equipment (phones, copiers, computers, etc.). If you feel that your program or organization could benefit by partnering with NCPCR, or have suggestions about ones that would, please contact us for details.
Email: ncpcr@osf1.gmu.edu
Transformative Mediation
This website is created by the University of Colorado Conflict Research Consortium in conjunction with The Training Design Consultation Project, funded by the Surdna and Hewlett Foundations, and directed by Joe Folger and Baruch Bush. Folger and Bush are the authors of the pathbreaking book, the Promise of Mediation (Jossey-Bass, 1994). This book describes an alternative approach to mediation, which the authors refer to as "transformative mediation." Although this approach has long historical roots, its use in the mediation field has been largely abandoned in recent years, at least until publication of this book, which has sparked a great deal of renewed interest in the transformative approach, not just to mediation, but to conflict resolution in general.
Peter Adler SPIDR Board President announces:
EXECUTIVE DIRECTOR .... SELECTED!
It gives me great personal pleasure to announce the hiring of Daniel Bowling, as SPIDR's new Executive Director, Daniel's appointment becomes effective January 1, 1998. For those who don't know him, Daniel comes to SPIDR with impeccable credentials. He is a graduate of Furman University (Cum Laude) and Harvard Law School. He has worked as a mediator of complex multi-party cases with CDR Associates of Boulder, Colorado and, in association with Peacebridge Communications of Charleston, South Carolina, has designed and led sophisticated mediation training programs throughout the U.S. and Canada. He has great depth as an ADR practitioner, an administrator and manager, and -- most of important -- is a deeply compassionate and caring human being.
More News from Peter Adler; SPIDR President
We live in an amazing time! Some of what is so stunning has to do with computers, modems, and the worldwide web. I am most pleased to announce that SPIDR has established an "electronic forum" that can be used by our members for both general discussions on topics of interest and for more specialized conversations and collaborations. The forum is best thought of as a large "Conference Hall" that has a variety of breakout rooms attached to it for sectors, chapters, the board, the executive committee, and for various working groups like the "ADR in the Workplace Initiatives". Preliminarily, one breakout room will be reserved for chapter discussions. Sectors have been assigned their own rooms. As we see the patterns of use and judge the demands, we will set up or change the breakout rooms just as would happen at an actual conference.
The meeting space can be found at: www.mediate.com/Forums/Index.cfm?CFApp=14 You will also be able to access this through www.spidr.org. Set a bookmark and visit regularily.
John Helie and his colleagues at Mediation Information and Resource Center (MIRC) have set the system up for us and we are online and ready for many different kinds of SPIDR-related discussions.
New Mediation and ADR Web Sites
The American Bar Association Section on Dispute Resolution: http://www.Abanet.org/dispute
Conseil International Du Batiment (CIB) International Task Group: http://www.umist.ac.uk/UMIST_Building_Engineering/tg15.htm
Italian ADR: http://www.tvtecnologia.it.curia
The International Chamber of Commerce: http://www1.usa1.com/~ibnet/icchp.html
The ALectric Law Library Lawcopedia@: http://www.lectlaw.com/tadr.htm
NASD Regulation: http://www.nasdr.com
Securities law and practice including dispute resolution: http://www.seclaw.com/centers/arbcent.shtml
Maine ADR Resourse: http://www.mainelaw.net/adr.html
ADR information: http://www.biddeford.com/~michaud
Conflict Dojo: http://www.wolfenet.com/~jj
Hawaii State Center for Alternative Dispute Resolution: http://www.hawaii.gov/jud
Francophones: http://interlex.droiteco.u-nancy.fr/braudo/arbmed/index.html
http://www.droit.umontreal.ca/Magistrature
AA White Dispute Resolution Institute: http://www.cba.uh.edu/center/aawdri.html
Justice Center of Atlanta: http://www.justicecenter.org
Mediation Alternatives: http://www.agt.net/public/schlosar/mediation.htm
NAFTA Arbitration & Mediation: http://www.azlaw.com/naftarb
Trinidad and Tabago Chamber of Industry and Commerce Dispute Resolution Service: http://www.trinidad.net/chambers/ttcic/adr.htm
The Better Business Bureau ADR: http://www.bbb.org/council/complaints/index.html
The Attorney General of Ontario announced earlier this year that all civil cases in Ontario courts (except family) would have to pass through mediation at an early stage. The Ministry of the Attorney General has asked the Civil Rules Committee (a committee of judges, practitioners and government people, run by the Court) to do rules to implement this system.
The Committee has analyzed the Ministry's proposals and has published a consultation document, asking for comments on the proposals and raising questions about some aspects of them.
The consultation document is available on-line in
WP6.1 .
The Law Society of Upper Canada's site (WP6.1)
www.lsuc.on.ca/services/services_civil_rules_committee-en.shtml
for the intro; the document is at
www.lsuc.on.ca/services/consultation_mandatory_mediation_en.wp6
The address to which to send comments is included in the document.
It's a helpful document for raising a lot of the issues in mediation as part of litigation, including making it mandatory. It may be of interest to members of this list not subject to the jurisdiction of Ontario courts (or likely to invoke it...)
John D. Gregory
Ministry of the Attorney General - Ontario
720 Bay Street, Toronto, ON, Canada M5G 2K1
Opinions are personal not official
(416)325-7630; fax(416)327-9505; gregoj@gov.on.ca
A N C Daily News Briefing
JOHANNESBURG October 12 1997 Sapa
CCMA ANNOUNCES NEW NATIONAL DIRECTOR
The Commission for Conciliation, Mediation and Arbitration (CCMA) on Sunday announced the appointment of Thandi Orleyn as its new national director.
Labour Minister Tito Mboweni said at a press conference the department of Labour and the governing body of the CCMA was pleased to have someone with Orleyn's experience heading the commission.
"We are quite certain there will be a good working relationship between Orleyn and staff of the CCMA, who have already worked with her in the capacity as part-time senior commissioner,"he said.
Orleyn, who is to take up her position in December,was the first black female law graduate from the University of Port Elizabeth. She has been national director of Independent Mediation Service of South Africa (IMSSA) since 1995 and was appointed regional director for the Legal Resources Centre in 1994 where she had practiced as an attorney since 1985.
Mboweni said Orlyn, who was unanimously voted in by the CCMA governing body, stood to benefit from the work already been done by outgoing national director Charles Nupen.
"She will inherit a strong resilient organisation," Mboweni said. "The CCMA has already made an impressive start."
Nupen, who would be working on dispute resolution projects in Southern Africa, said there was a sense of loss at leaving something he had helped to start.
"It is going to be tough, but I know the commission will be in good hands," he said.
The New Jersey Office of Dispute Settlement, CN-850, Trenton, NJ 08625 in its annual report notes that it has provided services in 101 court-referred mediations during 1996
DART, Suite 600, 1150 Connecticut Ave. NW, Washington, DC 20036-4104. 202-296-5775. Fax: 202-296-5795 has published a carefully designed eight page brochure in 8½x11 size entitled "Building Success for the 21st Century: A Guide to Partnering in the Construction Industry". It provides a clear definition of the partnering process with resources for exploring the process more fully, incorporating the Report of the Dispute Avoidance and Resolution Task Force 1996. It is also available from the American Arbitration Association, 140 W 51st St., New York, NY 10020-1203 in a smaller format.
World Intellectual Property Organization
WIPO is proposing a system for resolution of Internet Domain Name Disputes. This is a consequence of the International Ad Hoc Committee's recent proposals, which included the creation of the seven new top-level domains (.firm, .store, .web, .arts, .rec, .info and .nom). The procedures likely to be offered are on-line mediation, expedited arbitration and (a predominantly on-line) 'administrative challenge procedure'.
URL: www.wipo.int
A new bimonthly journal published in french by CLCJ, BP 38, Bordeaux cédex, France will focus on justice and social action with specific attention to the role of mediation. Subscriptions to Le Nouveau Bulletin, which will be 24 pages an issue in 2 colors are 240ff/year.
A resource list on family group conferences is available from Mediation UK, Alexander House, Telephone Ave., Bristol BS1 4BS, England. 0117-904-6661. Fax: 0117-904-3331. Email: mediationuk@cix.compulink.co.uk at £3.
CPR Institute for Dispute Resolution, 366 Madison Ave., New York, NY 10017-3122. 212-949-6490 has conducted a poll on the use of ADR amongst the 4000 companies that have signed the CPR pledge to use ADR in appropriate settings. More than half said they have attempted to use the ADR policy and more than 2/3 of those who have used it found cost savings. Almost seventy-five percent of those who have used the pledge found that the presence of an ADR policy has an effect on company dispute management.
CPR also has announced that fifty franchise companies are now participating in its National Franchise Mediation Program to resolve franchisor-franchisee disputes. Amongst the well known names participating are McDonalds, Burger King, Baskin-Robbins, Pizza Hut, Holiday Inn, Jiffy Lube, and many more.
The American Arbitration Association, 140 W 51st St., New York, NY 10020-1203 has revised its International Arbitration Rules clarifying a number of issues including: punitive damages are waived unless the agreement specifies to the contrary, providing a default mechanism for appointment of arbitrators in multiparty cases, revising time limits, permitting more aggressive management of the arbitration process by the arbitrators, including bifurcation of proceedings, and much more. The new rules can be downloaded from http://www.adr. org or be ordered at 800-778-7879.
The latest news from Sarjevo and ResRadio came in recently. Ken Clark can be reached at: search_resrad@zamir-sa.ztn. apc.org. His (edited) notes follow:
Dear Friends of Resolutions Radio,
Just when you thought that Resolutions Radio had slipped off the face of the earth like some inconsequential piece of history, the Resolutions Radio Internet report returns. We are growing and expanding as interest grows in the Resolutions Radio Process(c) and the work of Search for Common Ground. Here is a short summary: October, 1996- Present: Resolutions Radio continues as usual every week on the Free Elections Radio Network, dealing with issues ranging from refugee return from Germany to the assisted suicide. January, 1997: Search for Common Ground is awarded a grant from the UNHCR to produce an extension of the Resolutions Radio Concept called *Radio Zena* (Women's Radio) which provides for locally-run programs in four cities around Bosnia. Resolutions Radio also begins to receive support from USAID's Office of Transition Initiatives to continue work on the program and develop a network of journalists around the country who will provide conflict resolutions-oriented reports to the Resolutions Radio program. The journalists will begin work in earnest after a conflict resolution training, planned for April. February, 1997: Resolutions Radio breaks new ground with a remote, live broadcast from the divided city of Mostar featuring ten directors of radio and television outlets from East and West Mostar, brought together to discuss the professionalism and objectivity of Mostar's media. March, 1997: The European Union announces that it intends to support the work of Resolutions Radio through its PHARE funding structure. This grant will focus more on creating a production studio which will provide independent, conflict resolution-oriented programming for stations all over Bosnia. April, 1997: With the help of conflict resolution trainer, Dudley Weeks and award-winning journalist, Betty Rogers, we held the first ever training and workshop in conflict resolution on the radio. A text copy of the report from the April training is available from the Email address at the start of this report.
The American Arbitration Association, 140 W 51st St., New York, NY 10020-1203 has issued several new guides and rules pamphlets (effective date in [] where applicable):
Election Rules [12/1/85] (3pp 1997)
National Rules for the Resolution of Employment Disputes (including Mediation and Arbitration Rules) [6/1/97] (39pp 1997)
International Arbitration Rules [4/1/97] (23pp 1997)
Arbitration Rules for the Real Estate Industry (Including a Mediation Alternative) [4/1/97] (37pp 1997)
Resolving Employment Disputes: A Practical Guide (21pp 1997)
A Guide for Construction Industry Arbitrators (29pp 1997)
Building Success for the 21st Century: A Guide to Partnering in the Construction Industry (Report of the Dispute Avoidance and Resolution Task Force of the American Arbitration Association 1996) (13pp 1997)
Graduating students in Law and Engineering-Economic Systems and Operations Research have been named co-winners of the 1997 Richard S. Goldsmith Award for the best paper by a Stanford student on dispute resolution. Law student Peter Bouckaert and EESOR doctoral candidate Jeffrey Belkora will share the prestigious award for their respective papers on the negotiations leading to democratization in South Africa, which was published in the Stanford Journal of International Law, and on breast cancer patient-physician collaborative decisionmaking, which was based on doctoral research he has been conducting on decisionmaking by breast-cancer patients.
The New Jersey Law Journal on June 16 reported that the state's auto arbitration program resolved only 23,737 cases, the lowest number in five years. The personal injury panel, in contrast, resolved 10,737 an increase over the 8,637 resolved in 1995. De novo review was requested in 61.7% of auto arb cases with the defense making 72% of the requests.
Six leading Dispute Resolution Organizations have formed an alliance under the name National Council of Dispute Resolution Organizations to provide a rapid response mechanism for issues of mutual interest, a process for tracking legislation and judicial developments, a collective voice on political and policy issues, and related matters. The founding organizations are: Academy of Family Mediators, American Bar Association, Association of Family and Conciliation Courts, National Association for Community Mediation, NIDR/Conflict Resolution Education Network, and the Society of Professionals in Dispute Resolution (SPIDR).
NAME (the National Association for Mediation in Education) is no longer. Following its merger with NIDR it has now changed its name to NIDR/Conflict Resolution Education Network. The address and phone number are unchanged: 1726 M St. NW, Suite 500, Washington, DC 20036-4502, 202-466-4764. Email: nidr@igc.apc.org.
Cornell University PERC Institute on Conflict Resolution, 269 Ives Hall, Ithaca, NY 14853-3901 and Price Waterhouse have issued the executive summary of a report they are preparing based on a survey of ADR usage amongst the 1000 largest US corporations. Substantial use of a range of ADR approaches was found. A copy of the executive summary is available from the Institute.
Mediation News Archive 2005
Mediation News Archive 2004
Mediation News Archive 2003
Mediation News Archive 2002 [Part 1] [Part 2]
Mediation News Archive 2001 [Part 1] [Part 2]
Mediation News Archive 2000-1999
Mediation News Archive 1999-1998
Mediation News Archive 1998-1997
The views expressed by authors are their own and do not necessarily reflect the views of Resourceful Internet Solutions, Inc., Mediate.com or of reviewing editors.
